Passwater v. Superintendent

Filing 11

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus. The petitioner is DENIED a certificate of appealability. ***Civil Case Terminated. Signed by Judge William C Lee on 4/15/14. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BRAD PASSWATER,

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Petitioner,
v.
SUPERINTENDENT,
Respondent.

CAUSE NO. 3:13-CV-903 WL

OPINION AND ORDER
Brad Passwater, a pro se prisoner, is serving a 55-year sentence for a murder committed
in Madison County, Indiana. State v. Passwater, No. 48D03-0210-MR-355. He filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE 1.)
I.

BACKGROUND
In deciding the petition, the court must presume the facts set forth by the state courts are

correct. 28 U.S.C. § 2254(e)(1). It is Passwater’s burden to rebut this presumption with clear and
convincing evidence. Id. On post-conviction review, the Indiana Supreme Court set forth the
facts underlying this case as follows:
On October 26, 2002, Passwater struck his mother in the head twice with a frying
pan and then stabbed her in the head with a knife. A few days later, the State charged
Passwater with murder. On November 25, 2003, Passwater filed a notice of intent to
present an insanity defense. The trial court appointed a psychiatrist, Dr. Susan
Anderson, and a psychologist, Dr. Frank Krause, to make a determination concerning
Passwater’s current competency and to evaluate his mental health. Following a
Competency Hearing the trial court concluded that Passwater was competent to stand
trial.
The trial began in August 2004. During voir dire there was extended dialogue
between the prospective jurors and the attorneys regarding the insanity defense.
Several jurors expressed concerns that the defense was overused. One juror
questioned whether a defendant who was mentally challenged would actually receive

the treatment he needed before returning to society. Another juror opined that
defendants who used the insanity defense “get a slap on the hand.”
During trial the healthcare professionals presented conflicting testimony regarding
Passwater’s mental health. The defense offered Dr. George Parker who testified that
Passwater suffered from paranoid schizophrenia, experienced a schizophrenic
episode at the time of the offense, and lacked the ability to “appreciate the
wrongfulness of his behavior.” The court’s first expert witness, Dr. Anderson,
testified that she was unable to offer an opinion concerning Passwater’s sanity at the
time of the offense in part because Passwater refused to cooperate with her
evaluation. The court’s second expert, Dr. Krause, testified that he had an adequate
opportunity to evaluate Passwater and make a determination as to his state of mind.
According to Dr. Krause, Passwater experienced some mental health issues but he
was nonetheless able to appreciate the wrongfulness of his actions at the time of the
offense. Various lay witnesses testified about Passwater’s calm and deliberate
demeanor shortly before and after he struck his mother.
At the close of evidence, defense counsel requested a jury instruction on the penal
consequences of guilty but mentally ill and not responsible by reason of insanity
verdicts. He specifically requested a pattern jury instruction apparently used in the
state of California. The trial court rejected the tendered instruction because it was
inconsistent with Indiana law and instead gave an instruction proposed by the State
and approved of by this Court in Georgopulos v. State, 735 N.E.2d 1138, 1143 n.3
(Ind. 2000). Defense counsel did not object to the State’s tendered instruction.
Passwater v. State, 989 N.E.2d 766, 768-69 (Ind. 2013) (internal citations omitted). The jury
found Passwater guilty but mentally ill. Id. at 769. He was sentenced to a term of 60 years in
prison. Id. On direct appeal, the Indiana Court of Appeals affirmed the conviction, but remanded
for resentencing after concluding that Passwater’s sentence had been improperly enhanced in
violation of Blakely v. Washington, 542 U.S. 296 (2004). Id.; see also Passwater v. State, No.
48A02-0501-CR-50 (Ind. Ct. App. Dec. 28, 2005). On remand, the trial court sentenced him to

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the presumptive sentence of 55 years.1 Passwater, 989 N.E.2d at 769. Passwater did not seek
further review in the Indiana Supreme Court or the U.S. Supreme Court. (DE 1 at 1.)
In April 2007, Passwater filed a petition for state post-conviction relief. Passwater, 989
N.E.2d at 769. Following an evidentiary hearing at which Passwater was represented by counsel,
the petition was denied. Id. He appealed, arguing that his trial counsel was ineffective in failing
to object to the jury instruction given pursuant to Georgopolus. Id. at 769-70; Passwater v. State,
No. 48A05-1201-PC-17, at *1, 5 (Ind. Ct. App. July 25, 2012). The appellate court found that
Passwater failed to establish deficient performance or prejudice, since the instruction was an
accurate statement of Indiana law. Passwater, No. 48A05-1201-PC-17, at *5-10.
Passwater sought transfer to the Indiana Supreme Court, seeking review of his claim that
counsel was ineffective in failing to object to the jury instruction. Passwater, 989 N.E.2d at 770.
The court granted transfer, and thereafter held that counsel was not ineffective in failing to object
to the instruction, because the instruction had been expressly approved of by the court in
Georgopolus, and it was an accurate statement of Indiana law. Id. at 771-73. Accordingly, the
court affirmed the denial of post-conviction relief. Id. at 773. Passwater did not seek review in
the U.S. Supreme Court. (DE 1 at 2.) Thereafter, he filed a federal habeas petition raising one
claim: that his counsel was ineffective in failing to object to the jury instruction. (DE 1 at 3.)

II.

ANALYSIS
1

It appears the transcript from the resentencing hearing was inadvertently not included in the record submitted
to the court. (See DE 6.) However, there is no dispute that Passwater was sentenced to 55 years on remand. See
Passwater, 989 N.E.2d at 769. Furthermore, the transcript from the resentencing hearing is not needed to resolve
Passwater’s sole claim, which pertains to his counsel’s failure to object to a jury instruction at trial. (See DE 1 at 3.)

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Passwater’s petition is governed by the provisions of the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
AEDPA allows a district court to issue a writ of habeas corpus on behalf of a person in custody
pursuant to a state court judgment “only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court may grant
an application for habeas relief only if it meets the stringent requirements of 28 U.S.C. §
2254(d), set forth as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
Under this deferential standard, a federal habeas court must “attend closely” to the
decisions of state courts and “give them full effect when their findings and judgments are
consistent with federal law.” Williams v. Taylor, 529 U.S. 362, 383 (2000). A state court
decision is “contrary to” federal law if the state court arrives at a conclusion opposite to that
reached by the U.S. Supreme Court, or reaches an opposite result in a case involving facts
materially indistinguishable from relevant U.S. Supreme Court precedent. Bell v. Cone, 535 U.S.
685, 694 (2002). A federal court may grant habeas relief under the “unreasonable application”
clause if the state court identifies the correct legal principle from U.S. Supreme Court precedent
but unreasonably applies that principle to the facts of the petitioner’s case. Wiggins v. Smith, 539
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U.S. 510, 520 (2003). To warrant relief, a state court’s decision must be more than incorrect or
erroneous; it must be “objectively” unreasonable. Id. In other words, “[a] state court’s
determination that a claim lacks merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s decision.” Harrington v. Richter,
—U.S.—, 131 S. Ct. 770, 786 (2011). “[E]ven a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id.
Under the Sixth Amendment, a criminal defendant is entitled to “effective assistance of
counsel—that is, representation that does not fall below an objective standard of reasonableness
in light of prevailing professional norms.” Bobby v. Van Hook, 558 U.S. 4, 16 (2009). To prevail
on a Sixth Amendment claim, the petitioner must show that counsel’s performance was deficient
and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668
(1984). On the deficiency prong, the central question is “whether an attorney’s representation
amounted to incompetence under prevailing professional norms, not whether it deviated from
best practices[.]” Richter, 131 S. Ct. at 788. The court’s review of counsel’s performance is
deferential, and there is an added layer of deference when the claim is raised in a habeas
proceeding; “the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id. Furthermore, the court must “evaluate [counsel’s] performance as a whole rather
than focus on a single failing or oversight, ” Ebert v. Gaetz, 610 F.3d 404, 412 (7th Cir. 2010),
and must respect its “limited role in determining whether there was manifest deficiency in light
of information then available to counsel.” Premo v. Moore, —U.S.—, 131 S. Ct. 733, 741
(2011). Counsel is given significant discretion to make strategic decisions based on the

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information known to him at the time. See Yu Tian Li v. United States, 648 F.3d 524, 528 (7th
Cir. 2011) (“So long as an attorney articulates a strategic reason for a decision that was sound at
the time it was made, the decision generally cannot support a claim of ineffective assistance of
counsel.”); United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011) (observing that as long as
counsel’s strategic decisions are not “so far off the wall that we can refuse the usual deference
that we give tactical decisions by counsel, his performance will not qualify as deficient.”).
On the prejudice prong, the petitioner must show there is a reasonable probability that
“but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. A reasonable probability is a probability “sufficient to undermine
confidence in the outcome.” Id. at 693. In assessing prejudice under Strickland, “the question is
not whether a court can be certain counsel’s performance had no effect on the outcome or
whether it is possible a reasonable doubt might have been established if counsel had acted
differently.” Richter, 131 S. Ct. at 791. “The likelihood of a different result must be substantial,
not just conceivable.” Id. at 792. Where it is expedient to do so, the court may resolve an
ineffective assistance claim solely on the prejudice prong, because if the petitioner cannot
establish prejudice, there is no need to “grade” counsel’s performance. Strickland, 466 U.S. at
697. Furthermore, where the underlying argument the petitioner wanted counsel to make has no
merit, an ineffective assistance claim cannot succeed: “Failure to raise a losing argument,
whether at trial or on appeal, does not constitute ineffective assistance of counsel.” Stone v.
Farley, 86 F.3d 712, 717 (7th Cir. 1996).
Here, Passwater claims that his trial counsel was ineffective in failing to object to the jury
instruction regarding the insanity defense. (DE 1 at 3.) In rejecting this claim on post-conviction

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review, the Indiana Supreme Court properly identified Strickland as the governing standard, and
concluded that Passwater failed to establish deficient performance or prejudice. Passwater, 989
N.E.2d at 770-73. Specifically, the court concluded that an objection would have been
unavailing under state law, because the instruction had been expressly approved of by the
Indiana Supreme Court in Georgopolus, and it was an accurate statement of Indiana law.2
Passwater, 989 N.E.2d at 771-73. This court is bound by the state court’s determination of state
law in deciding whether counsel was ineffective in failing to object to the instruction. See
Huusko v. Jenkins, 556 F.3d 633, 637 (7th Cir. 2009) (“[A] federal court cannot issue a writ of
habeas corpus that rests on a belief that a state court has misunderstood or misapplied state
law.”); Earls v. McCaughtry, 379 F.3d 489, 495 (7th Cir. 2004) (federal habeas court cannot
“second-guess state courts in interpreting state law,” and thus court was bound by state’s
determination that an objection would not have been sustained under state law in assessing
ineffective assistance of counsel claim). Because the state court determined that the instruction
given was not objectionable under state law, Passwater cannot establish deficient performance or

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At the end of the opinion, the court approved of a pattern jury instruction which it found to be an
“improvement” over the instruction adopted in Georgopolus. Passwater, 989 N.E.2d at 773. The court “endorse[d] and
approve[d]” the use of the pattern jury instruction in future cases. Id. However, the court expressly held that the
instruction given in Passwater’s case “was and is a correct statement of the law.” Id. at 772. To the extent the opinion
reflected a change in Indiana law, counsel cannot be considered incompetent for failing to predict or anticipate changes
in the law. Valenzuela v. United States, 261 F.3d 694, 700 (7th Cir. 2001) (“[T]he Sixth Amendment does not require
counsel to forecast changes or advances in the law.”).

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prejudice in connection with counsel’s failure to object.3 See Stone, 86 F.3d at 717. Therefore,
this claim is denied.
C.

Certificate of Appealability

As a final matter, the court must consider whether to grant Passwater a certificate of
appealability. 28 U.S.C. § 2253(c); RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES. To
obtain a certificate of appealability, the petitioner must make a substantial showing of the denial
of a constitutional right by establishing “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). When the petition is resolved on procedural grounds, to obtain a certificate
of appealability the petitioner must establish two components: that reasonable jurists would find
it debatable whether the court was correct in its procedural ruling, and that the petition states a
valid claim for denial of a constitutional right. Id. For the reasons fully explained above,
Passwater has not established that the state court’s resolution of his claim constituted an
unreasonable application of Strickland. The court finds no basis for concluding that jurists of
reason would debate the outcome of the petition or find a reason to encourage Passwater to
proceed further. Accordingly, the court declines to issue him a certificate of appealability.

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Some of the arguments in Passwater’s traverse could be read as trying to raise a free-standing challenge to
the jury instruction. (See DE 9-1 at 8-9, 13.) He did not raise any such claim in his petition, and a traverse is not the
proper place to be asserting new claims. See RULE 2(C)(1) OF THE RULES GOVERNING SECTION 2254 CASES (providing
that all grounds for relief must be contained in the petition). Furthermore, Passwater did not exhaust a free-standing
challenge to the jury instruction in the state proceedings. See Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (even
though petitioner claimed in state proceedings that his attorney was ineffective in failing to challenge a tainted
identification, he did not properly exhaust a free-standing claim based on the tainted identification, since operative facts
surrounding the two claims were distinct). Nor has he presented any grounds for excusing his failure to do so.

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III.

CONCLUSION
For the reasons set forth above, the petition (DE 1) is DENIED. The petitioner is

DENIED a certificate of appealability.
SO ORDERED.
ENTERED: April 15, 2014
s/William C. Lee
William C. Lee, Judge
United States District Court

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